The safety harnesses should be attached by an individual fall arrest device to a static line positioned above the ridge line. While engaged in the work, persons should only walk or stand over the purlin line.
18 It was submitted it was optional for an employer in the circumstance not to require the attachment of safety harnesses. However, the principle behind the Code of Practice is: if a roof or part of a roof covering contains fragile or brittle material the occupier must maintain warning signs and safe work procedures and unfortunately, notwithstanding the defendant's submission as to harness attachments (which were missing), there were no safe working conditions on this site.
19 It is true the safe work method statement upon which Mr Thompson relied did not expressly alert him to the risk posed by the safety wire being corroded. However, there was an obligation on him as the employer on site and the occupier on site, to actually check the safety mesh.
20 The principle of foreseeability is a factor in determining the objective seriousness of an offence. This was considered and affirmed in the Full Bench decision of Capral Aluminum Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610. On the issue of foreseeability, the Full Bench in Capral stated at [82]:
82 The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms:
"… reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy.
21 The defendant submits it was not reasonably foreseeable that in the event a roof sheet broke the safety wire would not support Mr Simic's weight and, having regard to his past experience, it was not reasonably foreseeable that such wire would break or fall. The defendant, therefore, submits, while the offence remains serious, the offence is not aggravated by reason of the offence being reasonably foreseeable in the circumstances.
22 I find, however, the risk was foreseeable. Mr Thompson's culpability is aggravated by his knowledge the roof was brittle. While he did inform his employees about safe working and he did inform them about the brittleness and how it was only safe to walk on the studs, he did not inform them as to the state of the mesh and that was the risk protection required. The Occupational Health and Safety Act requires all employers to be diligent and proactive to ensure all are safe at their work site.
23 The gravity of the injury actually resulting from the breach does not, of itself, dictate the amount of penalty but the occurrence of death or serious injury manifests a degree of seriousness of the relevant detriment to safety. It is important to note that, although the facts reveal Mr Simic has since died, his death was not a consequence of this incident. The evidence, however, does reveal he suffered serious injury. Section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 provides an aggravating factor may be taken into account in determining the appropriate sentence for an offence is:
(g) The injury, emotional harm, loss or damage caused by the offence was substantial.
24 This was a serious breach which included the serious injury of an employee as I found in Inspector Spence v Michael Carter and Black Cat Roofing Pty Limited [2009] NSWIRComm 161. The potential risk of significant injury was not a remote possibility. There was a high risk to safety of any employee or sub-contractor having access to this roof, which roof was not in good order and not safely protected by properly structured safety mesh and where the employees and sub-contractors were not properly protected with the provision of safety harnesses with the necessary roof attachments.
25 The availability of simple and straight-forward steps to remedy the deficiencies in the system is relevant (WorkCover Authority of New South Wales (Inspector Glass) v ACI Operations Pty Limited, Schmidt J, CT93/1025, 25 February 1994, unreported). There were obvious steps that could have been taken which, either singly or in combination, would have eliminated or reduced the risk. These include devising an adequate safe work method to address the risk and control measures, such as the suitable location for anchor points and for methods to install them, induction into the amended safe work method system and the appropriate training of the unskilled employees. The latter point is relevant because Mr Simic was on this site and injured himself on the first day and there is no evidence he was trained and there is a suggestion at least one other sub-contractor was not properly trained. These steps were immediately implemented after the incident. Such activity after the incident is indicative of the fact each amendment to the system of work was readily available and practical.
26 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken has been considered in some detail in Capral at [71]-[77]. Each approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench at [74]:
... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.
27 The element of specific deterrence, the defendant submitted, should be reduced or disregarded where the Court is satisfied the risk of re-offending is low or non-existent. While the defendant continues to work in the construction industry the method and manner in which he now conducts his work is such that there is minimal risk of him re-offending. Following the incident, the defendant ceased undertaking the removal and replacement of asbestos roofing and worked either alone or with a small pool of experienced roofing contractors with whom he had previously worked.
28 In December 2008, Mr Thompson ceased working as a contractor and so is now not employing roofing labourers and has subsequently commenced work with an employer in a supervisory role.
29 Arising from this latter working arrangement, he now works in a corporate and structured occupational health and safety environment. He no longer employs workers nor hires sub-contractors. The defendant, therefore, submits any consideration with respect to specific deterrence should be marginal or zero.
30 I have seen and heard the applicant in the witness box. He is an immigrant from New Zealand. I find he is an honest young man who has always had a capacity to earn a living. He provided employment over the years to many sub-contractors. He has met with financial difficulties, both because of his own limited financial management skills, as well as because of a possible fraud. He faces debts related to his business activities which he carried personally and a debt to the Department of Taxation.
31 He appears to have been psychologically affected as well as financially affected by this incident. I accept he has tried recently to put his financial affairs in better order. He has retrained himself as to safe working procedures. He has taken a permanent supervisory position with a good and reliable income.
32 However, given his financial circumstances, I am of the view he may well choose again at some time to become a contractor, notwithstanding the assurance that he has given the Court that at present he is satisfied in his present circumstances.
33 I will allow only a small element of specific deterrence on penalty and I do so with the knowledge he has retrained himself to be aware of safe work practices within this industry.
34 As to general deterrence, I adopt the view I adopted in Inspector Spence v Michael Carter and Black Cat Roofing Pty Limited [2009] NSWIRComm 161 at [27]:
... there are within the building and construction industry special protections required for the work of asbestos removal and also special safety procedures to be followed for work at heights. The court must once again remind this inherently dangerous industry of the need for the rigorous application of the basic and well known safety practices that are necessary for safe working at heights and around asbestos. There shall be an element of general deterrence in the consideration of penalty.
35 It is also necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the Crimes (Sentencing Procedure) Act 1999 relevant to the defendant. As was said in R v Way (2004) 60 NSWLR 168 at [56]:
[56] ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c).